Tenant Rights and Second-Hand Smoke: What To Do if Your Non-Smoking Building Fails To Enforce Rules

If you or a loved one experiences secondhand smoke in your condominium or apartment complex and your non-smoking building fails to enforce the rules, there are steps you can take. Document the occurrences, notify your landlord or property manager, and request enforcement. If the problem continues, you can escalate it, even to the point of taking legal action.

A local landlord-tenant lawyer can help you address an unwanted smoke infiltration problem and determine the right next steps for your situation.

Legal Strategies for Tenants

If you live in a smoke-free building, your lease, and sometimes your homeowners’ association covenants, may create enforceable obligations, but the available remedies, and whether you can compel enforcement, depend on your lease terms, the governing documents, and state law. Several legal theories may provide relief:

• Breach of contract (when you have a no-smoking clause in your lease agreement)
• Breach of the implied warranty of habitability
• Nuisance claims
• Potential fair housing protections if you have a condition such as asthma or COPD

It’s important to build a strong body of evidence regarding the second-hand smoke from the start.

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How To Ask, and Escalate, When a Landlord Does Not Enforce Smoke-Free Policies

There are certain steps you can follow in an attempt to enforce a non-smoking policy in a multi-unit housing unit.

1. Review any no-smoking policy or lease agreement for language or provisions relating to no-smoking rules.
2. Provide written notice to those in charge. That may include building management, maintenance staff, or your landlord, and always keep copies of your written notice.
3. Request a specific enforcement response and set a reasonable deadline for the response.
4. Follow up in writing if you have not received a response by the deadline you requested.
5. Escalate the issue to management, an HOA, or a public housing agency, if needed.
6. Consider drafting a formal demand letter outlining the breach and requesting an adequate response.

It may be time to involve a tenant rights organization or a landlord-tenant attorney at any step along the way if you need assistance proceeding through the process.

Recommended Documentation Checklist

Once you notice that your building is failing to enforce the non-smoking policy, document, document, document. The following are examples of what you should collect through documentation:

• Dates and times of smoke infiltration
• Where the smoke entered from
• Photos or videos of smoke or smoke damage
• Copies of complaints sent to management
• Witness statements from neighbors
• Medical records if smoke is affecting health

Documentation is critical to any case, so the earlier you can document the problem, the better. That can help your position.

What To Do If No Smoke-Free Policies Exist

Sometimes, a lease or building rules can be silent on the issue of smoking. Even if there is no explicit policy in place, you still have options. The approaches include the following:

• Invoke the covenant of quiet enjoyment and habitability protections.
• Negotiate a lease addendum with the landlord.
• Petition for the development of a building-wide smoke-free policy that covers common areas and individual units.
• Rely on applicable state or local ordinances.

Don’t go in alone when pursuing changes to your building’s rules. Try to work collaboratively with your landlord and neighbors to reach a solution.

Are Rental Properties Required To Have Smoke-Free Policies?

There is no legal requirement for smoke-free policies in most private rentals. However, there are exceptions. The U.S. Department of Housing and Urban Development (HUD) has a smoke-free rule for public housing authorities, and certain federally assisted or subsidized housing programs may have smoke-free policies.

Many landlords voluntarily adopt smoke-free policies that ban the use of tobacco products, tobacco smoke, or vaping. Even if your building does not adopt a smoke-free mandate, it does not leave tenants totally without protection. State and local law often apply.

How State and Local Laws Fill Gaps and Available Legal Recourse

Where building policies are absent, state and local laws frequently address smoking in multi-unit housing:

• City or county ordinances restricting smoking in shared residential spaces
• State habitability and nuisance statutes
• Clean indoor air laws may extend to common areas within a building

Potential Legal Recourse Options

There are several options for legal recourse when you are dealing with a building that fails to enforce non-smoking rules.

• Filing complaints with local health departments or housing agencies
• Pursuing mediation to attempt to settle the case without litigation
• Filing a lawsuit for a lease violation, nuisance, or habitability violations

Potential Remedies

• Enforcement of existing non-smoking rules
• Rent reduction, lease termination, or damages
• Repairs or sealing work
• Transfer to another unit

Consult a landlord-tenant attorney to understand options available under landlord-tenant law for your particular jurisdiction.

Contact a Landlord-Tenant Lawyer

If your non-smoking building fails to enforce rules, it’s important to document, notify, escalate, and pursue legal recourse when needed. Acting early positions you to obtain the best outcome.

You deserve to breathe smoke-free air. Contact a landlord-tenant attorney in your area to determine the best way forward in your situation.